Ex Parte Daniel et alDownload PDFPatent Trial and Appeal BoardJan 26, 201812406475 (P.T.A.B. Jan. 26, 2018) Copy Citation United States Patent and Trademark Office UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O.Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 12/406,475 03/18/2009 Joseph A. Daniel 072056-8025.US00 5486 91854 7590 01/30/2018 Lincoln Electric Company/Perkins COIE LLP 700 Thirteenth Street, NW Suite 600 Washington, DC 20005-3960 EXAMINER MAYE, AYUB A ART UNIT PAPER NUMBER 3742 NOTIFICATION DATE DELIVERY MODE 01/30/2018 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): wdcle @perkinscoie. com patentprocurement @perkinscoie. com ip @ lincolnelectrie .com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOSEPH A. DANIEL and JAMES E. HEARN Appeal 2017-001522 Application 12/406,4751 Technology Center 3700 Before: STEFAN STAICOVICI, JILL D. HILL, and ARTHUR M. PESLAK, Administrative Patent Judges. STAICOVICI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Joseph A. Daniel and James E. Hearn (“Appellants”) appeal under 35 U.S.C. § 134(a) from the Examiner’s decision in the Final Action (dated Aug. 3, 2015, hereinafter “Final Act.”) rejecting claims 1—6, 8—15, 17—37, and 44—53.2 We have jurisdiction under 35 U.S.C. § 6(b). 1 According to Appellants’ Appeal Brief (hereinafter “Appeal Br.”), filed Feb. 25, 2016, Lincoln Global, Inc. is the real party in interest. Appeal Br. 3. 2 Claims 7, 16, and 38-43 are canceled. Appeal Br. 35, 36, and 40 (Claims App.). Appeal 2017-001522 Application 12/406,475 SUMMARY OF DECISION We REVERSE. INVENTION Appellants’ invention relates to a method and apparatus for adaptive gas metal arc welding (GMAW) short circuit frequency control. Spec. para. 1. Claims 1, 11, 26, 29, 32, 35, 44, 46, 48, and 50 are independent. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A welding apparatus, comprising: a waveform compensation device; a power section coupled to said waveform compensation device which generates a welding waveform in accordance with a signal from said waveform compensation device and a welding arc based on said welding waveform; and a frequency detection device which detects at least one of a voltage, current and power of said welding arc and determines frequency information of said arc, wherein said waveform compensation device dynamically adjusts at least a portion of said welding waveform based on said frequency information; wherein said at least one of a voltage, current, and power is respectively compared to at least one of a voltage setpoint, a current setpoint, and a power setpoint; and wherein said frequency detection device uses at least one of a time duration of a short and a time duration of a non-short period to determine said frequency information. 2 Appeal 2017-001522 Application 12/406,475 REJECTIONS The following rejections are before us for review: I. Claims 1-6, 8-15, 17-21, 23-27, 29, 30, 52, and 533 are rejected under 35 U.S.C. § 103(a) as unpatentable over Stava (US 2005/0189334 Al, published Sept. 1, 2005) and Sardy et al. (US 2010/0133250 Al, published June 3, 2010) (hereinafter “Sardy”). II. Claims 22, 28, and 314 are rejected under 35 U.S.C. § 103(a) as unpatentable over Stava, Sardy, and Puschner (US 4,525,621, issued June 25, 1985). III. Claims 32, 33, 35, and 36 are rejected under 35 U.S.C. § 103(a) as unpatentable over Stava, Sardy, and Artelsmair et al. (US 2009/0242534 Al, published Oct. 1, 2009) (hereinafter “Artelsmair”). IV. Claims 34 and 37 are rejected under 35 U.S.C. § 103(a) as unpatentable over Stava, Sardy, Artelsmair, and Puschner. V. Claims 44, 46, 48, and 50 are rejected under 35 U.S.C. § 103(a) as unpatentable over Stava, Artelsmair, and Sardy. VI. Claims 45, 47, 49, and 51 are rejected under 35 U.S.C. § 103(a) as unpatentable over Stava, Sardy, Artelsmair, and Puschner. 3 The Examiner’s inclusion of claims 32, 33, 35, and 36 in the heading of Rejection I appears to be a typographical error in that these claims are not discussed in the body of the rejection, and, rather, are discussed in Rejection III. See Final Act. 2, 9; see also Appeal Br. 16, footnote 2. 4 The Examiner’s inclusion of claims 40 and 43 in the heading of Rejection II appears to be a typographical error in that these claims are canceled. See above, footnote 2. 3 Appeal 2017-001522 Application 12/406,475 ANALYSIS Rejection I The Examiner finds that Stava discloses substantially all of the limitations of independent claims 1, 11, 26, and 29, but fails to disclose a frequency detection device that uses “a time duration of a short” to determine frequency information. Final Act. 3—7. Nonetheless, the Examiner further finds that Sardy discloses a frequency detection device that uses “a time duration of a short to determine said shorting frequency.” Id. at 7—8 (citing Sardy, paras. 62—69; Figs. 4—6, 8). The Examiner concludes that it would have been obvious to a person of ordinary skill in the art “to modify Stava with frequency detection information as taught by Sardy [so that] . . . insignificant or only slightly significant fluctuations in the time curve of the resistance R(t) can be avoided or skipped to a certain degree. Id. at 8 (citing Sardy, para. 20). Appellants argue that Sardy does not “determine a time duration of a short of said arc,” because Sardy either counts “the number of shorts,” or determines “the time interval between two consecutive short circuits.” Appeal Br. 16—17. Appellants assert that, “[t]he issue here is not whether the waveform in Sardy produces shorts that have a duration. The issues here are whether the system in Sardy determines the time duration of the short and whether the time duration of the short is used to determine frequency information of the arc.” Id. at 18; see also Reply Br. 6—7. In response, the Examiner notes that because Stava discloses dynamic adjustment and because Sardy uses frequency as a control variable, an “advantage of [the combination] is that only time differences of consecutive short circuits in the arc have to be determined in order to monitor the 4 Appeal 2017-001522 Application 12/406,475 welding process without it being necessary to take an exact measurement of or obtain an exact knowledge of the current or voltage curve.” Ans. 15. Appellants’ arguments are persuasive, because the Examiner does not adequately explain how Sardy’s frequency control is based on a time duration of a short, as required by each of independent claims 1, 11, 26, and 29. Sardy discloses that “melting the welding rod 11 into the arc 15 . . . briefly causes an electric short circuit,” which causes “a periodic series of low and high values for the welding voltage U(t) 30,” and, thus, results in “a more or less constant number of short circuits during time interval T.” Sardy, para. 62; Fig. 4 (emphasis added). Furthermore, we note that Sardy’s “FIG. 5 shows a diagram plotting the time curve for a frequency H(t) 37 of the occurrence [number] of short circuits during the time interval T illustrated in FIG. 4.” Sardy, para. 63; Fig. 5. As such, in light of Sardy’s specific disclosure, we agree with Appellants that Sardy’s frequency H(t) “is determined by counting the number of shorts, as determined by the low values on curve U(t), in the given time period T”, and, thus, Sardy does not measure each individual short duration.5 Appeal Br. 17. Although we appreciate that Sardy further discloses that “instead of using the frequency H(t) 37 as a control variable, a period duration TP 43 corresponding to the time interval between two consecutive short circuits ... is used” (Sardy, para. 70), interval TP is a 5 Indeed, the Examiner notes that Sardy’s minimum points denote short circuits in the arc and that “[b]ased on the number of minimum points which occur during a pre-selectable time interval based on the instantaneous observation period, a frequency H(t) of short circuit occurring in the arc is calculated and this frequency H(t) is used as a control variable.” Ans. 17; see also id. at 15. 5 Appeal 2017-001522 Application 12/406,475 time duration between two consecutive short circuits, and not the time duration of a short, as called for by each of independent claims 1, 11, 26, and 29. We, thus, agree with Appellants that the Examiner’s reliance on Sardy in finding the claimed duration of a short is not supported by a preponderance of the evidence. See Reply Brief 4. As such, the Examiner’s legal conclusion of obviousness is not supported by sufficient factual evidence, and thus, cannot stand. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (holding that “[t]he legal conclusion of obviousness must be supported by facts. Where the legal conclusion is not supported by facts it cannot stand.”). Accordingly, for the foregoing reasons, we do not sustain the rejection of independent claims 1, 11, 26, and 29, and their respective dependent claims 2-6, 8-10, 12-15, 17-21, 23-25, 27, 30, 52, and 53 under 35 U.S.C. § 103(a) as unpatentable over Stava and Sardy. Rejection II Claims 22, 28, and 31 depend respectively from independent claims 1, 26, and 29. See Appeal Br. 34-42 (Claims App.). The Examiner’s reliance on the disclosure of Puschner does not remedy the deficiencies of the Stava and Sardy combination discussed supra. See Final Act. 8—9. Therefore, for the same reasons as discussed above, we also do not sustain Rejection II. 6 Appeal 2017-001522 Application 12/406,475 Rejection III The Examiner finds that the combined teachings of Stava and Sardy disclose most of the limitations of independent claims 32 and 35, but fails to disclose a frequency detection device that uses “a time duration of a non short period” of the welding arc to determine frequency information. Final Act. 9. Nonetheless, the Examiner finds that Artelsmair discloses this limitation. Id. (citing Artelsmair, paras. 41, 47). The Examiner concludes that it would have been obvious to a person of ordinary skill in the art to further modify the device and method of Stava, as modified by Sardy, to include a non-short period, as taught by Artelsmair, “in order to create a welding method which is not affected by slag possibly adhering to the end of the welding wire to be contacted and which ensures a safe ignition of the electric arc.” Id. at 9—10 (citing Artelsmair, Abstract). Appellants argue that claim 32 “determine[s] a time duration of a non short period of said arc” and claim 35 “determine[s]... a time duration of a non-short period of said welding arc.” Appeal Br. 25, 27. In contrast, Appellants assert that Artelsmair’s time interval 47 does not constitute a “non-short period” of the welding arc because “the arc is not present when there is a non-short condition due to buildup of slag 42.” Appeal Br. 25 (citing Artelsmair, Fig. 3 (“which shows no ignition during the time period 47”)); see also id. at 27. According to Appellants, because “the detection of a no short circuit in Artelsmair’s system is only done prior to or during an ignition process,” Artelsmair does not detect the non-short period “when the system is welding (arcing).” Id. at 26; see also Reply Br. 15. Appellants’ arguments are persuasive, because Artelsmair’s paragraphs 41 and 47, upon which the Examiner relies, do not disclose a 7 Appeal 2017-001522 Application 12/406,475 non-short period during the welding process. Artelsmair discloses that “[bjecause of the electrically non-conductive slag 42 no short-circuit is detected by the control unit 4 and/or the short-circuit monitoring unit at point of time 44.” Artelsmair, para. 41; Fig. 3. Artelsmair moves welding wire 13 backwards and forwards until slag 42 detaches, and, thereafter, “introduc[es] ignition of the electric arc 15,” and, thus, there is no arc until after the slag is removed. Id. at para. 42. Similarly, paragraph 47 of Artelsmair discloses that “[i]f the control unit 4 detects no short circuit after a predefined period of time . . . i.e. if the slag 42 is present at the end of the welding wire 13 to be contacted, the ignition process will be interrupted and the slag-removing process will be introduced.” Id., para. 47. Thus, in Artelsmair, there is no ignition, and, therefore, no arc until after non-short period 47, namely, at time 35 when “welding process proper” is performed. Id., para. 57. Accordingly, the Examiner has not set forth persuasive evidence or technical reasoning that Artelsmair’s “no short circuit” detection prior to welding is the same as a time duration of a non-short period of a welding arc or can be correlated to the time duration of a non-short period of the arc. We, thus, agree with Appellants that the Examiner’s reliance on paragraphs 41 and 47 of Artelsmair in finding the claimed time duration of a non-short period of the welding arc is not supported by a preponderance of the evidence. See Reply Brief 15—16. Hence, for the foregoing reasons, we do not sustain the rejection of independent claims 32 and 35, and their respective dependent claims 33 and 36 under 35 U.S.C. § 103(a) as unpatentable over Stava, Sardy, and Artelsmair. 8 Appeal 2017-001522 Application 12/406,475 Rejection IV Claims 34 and 37 depend respectively from claims 32 and 35. The Examiner’s reliance on the disclosure of Puschner does not remedy the deficiencies of the combined teachings of Stava, Sardy, and Artelsmair discussed supra. See Final Act. 10. Therefore, for the same reasons as discussed above, we also do not sustain Rejection IV. Rejection V The Examiner finds that the combined teachings of Stava and Artelsmair disclose substantially all of the limitations of independent claims 44, 46, 48, and 50, but fail to disclose, inter alia, “a frequency detection device which detects voltage, current and power of said welding arc and determines said frequency information of said arc.” Final Act. 12. Nonetheless, the Examiner further finds that Sardy discloses this limitation. Id. at 13. The Examiner concludes that it would have been obvious “to modify Stava with frequency detection information as taught by Sardy [so that] insignificant or only slightly significant fluctuations in the time curve of the resistance R(t) can be avoided or skipped to a certain degree.” Id. (citing Sardy, para. 20). Appellants argue that “the proffered motivation to combine the references is flawed in that it would still not require Stava to include Sardy’s frequency detection information.” Appeal Br. 18, 29. Appellants assert that, Sardy’s resistance measurement R(t) is “a separate embodiment from the frequency embodiment. That is, frequency information of Figure 4 is not used in the calculation of the welding [arc] resistance.” Id. at 18 (citing Sardy, paras. 72—89, noting these paragraphs “discuss[] . . . using the [arc] 9 Appeal 2017-001522 Application 12/406,475 resistance R(t) 44 as a control variable for monitoring the welding process, but there is no disclosure that frequency information related to Figure 4 . . . is used in this embodiment.” Id.. The Examiner responds that “combining prior art Stava with Sardy and Art[el]smair according to known method and system to yield improved system and predictable results.” Ans. 47; see also Ans. 14—17. Appellants’ arguments are persuasive, because the Examiner does not provide adequate support that applying Sardy’s frequency detecting information affects the arc resistance in the manner suggested, and because the Examiner does not explain adequately the relationship between arc resistance and frequency information such that use of frequency information would logically affect arc resistance. See Final Act. 13. Moreover, the Examiner’s position in the Answer is based on speculation on the part of the Examiner. Ans. 47. The mere fact that elements can be combined is not, in itself, a reason to combine them. Rather, an obviousness rejection must explain the reasoning by which those findings support the Examiner’s conclusion of obviousness. Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1328-30 (Fed. Cir. 2009). Here, Appellants are correct that, although Sardy’s resistance embodiment discloses benefits relative to using the arc resistance as a process control parameter, the Examiner has not pointed to any portion of Sardy that discloses that the benefits of Sardy’s resistance embodiment would have predictable results with respect to Sardy’s frequency detection embodiment. See Reply Br. 8. Therefore, for the foregoing reasons, we agree with Appellants that the Examiner’s rejection is flawed in that it does not correlate Sardy’s frequency information with its welding arc resistance 10 Appeal 2017-001522 Application 12/406,475 information. See Appeal Br. 19 (“the modified system still would not use Sardy’s frequency information”; see also In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,418 (2007)). In conclusion, as the Examiner’s articulated reasoning for combining the teachings of Stava, Artelsmair, and Sardy is not supported by a preponderance of the evidence of the record before us, the Examiner’s legal conclusion of obviousness cannot stand. See In re Warner, 379 F.2d at 1017. Accordingly, for the foregoing reasons, we do not sustain the rejection of claims 44, 46, 48, and 50 under 35 U.S.C. § 103(a) as unpatentable over Stava, Artelsmair, and Sardy. Rejection VI Claims 45, 47, 49, and 51 depend respectively from claims 44, 46, 48, and 50. The Examiner’s reliance on the disclosure of Puschner does not remedy the deficiencies of the combined teachings of Stava, Artelsmair, and Sardy discussed supra. See Final Act. 13—14. Therefore, for the same reasons as discussed above, we also do not sustain Rejection VI. DECISION The Examiner’s decision to reject claims 1—6, 8—15, 17—37, and 44— 53 under 35 U.S.C. § 103(a) is reversed. REVERSED 11 Copy with citationCopy as parenthetical citation